News & Updates
Major case victories & highlights
Bureau of Indian Affairs Publishes New Binding Regulations.
These new BIA regulations are now binding law, and have dramatic impacts on ICWA proceedings, especially adoptions.
Mark was a principal author of comments submitted by the American Academy of Adoption Attorneys to the Bureau of Indian Affairs urging rejection of the proposed regulations as inimical to the best interests of children and Indian parents. See AAAA BIA Comments. Fortunately, the BIA heard these concerns and adopted most of Mark and his colleagues’ recommendations.
Mark was co-counsel on this case, and on the brief filed with the South Carolina Supreme Court and the U.S. Supreme Court, in which the U.S. Supreme Court held that the Indian Child Welfare Act could not be applied to block an adoption lawfully filed under state law. This was a momentous adoption case with significant ramification for ICWA proceedings across the nation.
Mark interviewed on NPR’s Radiolab.
Other major landmark ICWA cases Mark has won
In re Welfare of R.S. (Minn. 2011). The Minnesota Supreme Court ruled in favor of Mark’s GAL client, holding that pre-adoptive and adoptive placement proceedings as defined by the ICWA may not be transferred to tribal court. The victory will help ensure that Indian children have one single court and GAL providing ongoing, continuous oversight over the child’s case, still with tribal participation. Parties may continue to seek early transfer of child protection cases to tribal court, which Mark believes is the better practice.
In re Welfare of R.A.J. (Minn. App. 2009). Mark was co-counsel in this case and successfully motioned the trial court to find that an order transferring a case to tribal court had been obtained by fraud. The Minnesota Court of Appeals affirmed the trial court, holding “ICWA does not permit procuring the transfer of a proceeding to the jurisdiction of a tribal court through intentional misrepresentations.”
In re Baby T.T.B. (Minn. Sup. Ct.). In July 2006, Mark filed an amicus curiae brief (a “friend of the court” brief) in the Minnesota Supreme Court on behalf of the National Association of Counsel for Children asserting that the Minnesota Court of Appeals erred in holding that “good cause” did not exist to deny the motion of the Tribe to transfer the case to tribal court in the proceedings below. Mark argued in his brief that the Court should interpret the permanency timelines behind the Adoption and Safe Families Act of 1997 coextensively with the “good cause” transfer provision in Indian Child Welfare Act, and that the Court may give effect to both federal laws by finding the existence of good cause to deny transfer in situations where the proceedings at issue would violate the permanency timetables of the ASFA. On October 19, 2006, the Minnesota Supreme Court issued an opinion adopting Mark’s arguments.